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§ 3. Dogovory concerning rendering of telecommunication services for tele-radio broadcasting.

Now our state is in a transitive stage of development of telecommunication services in the field of the tele-radio broadcasting which definitive purpose is replacement of analogue tele-radio broadcasting with digital tele-radio broadcasting.

[197 [198] [199]

Transition from analogue to digital tele-radio broadcasting is caused not only development of the market of the corresponding equipment (TV-receivers) which can already accept signals of television (radio) of programs in digital quality and combine using possibilities a telematic telecommunication service (access to a network "Internet"), but also insufficiency of a radio-frequency spectrum which is limited

198

Resource.

Thus, if earlier we said that tele-radio broadcasting

199

Video + a sound »now it« video + a sound + data »is under construction by a principle«, thus as data can be understood and the data transferred on a network of data transmission, and a telematic telecommunication service (access to a network "Internet"), contextual advertising and other additional services (function "pause" at viewing of telecasts in a mode of real time, function «video on

To inquiry »and so forth).

Order and conditions of the conclusion of contracts on rendering of telecommunication services for cable and (or) radio tele-radio broadcasting are regulated by the Governmental order of the Russian Federation from December, 22nd, 2006 № 785 «About the statement of rules of rendering of a telecommunication service for a television announcement and (or) broadcastings», accepted to execute Law item 44 «About communication» (further also «Rules about rendering of a telecommunication service for tele-radio broadcasting»). However for explanation of a legal status of the parties of such contract it is necessary to consider Law positions «About mass media» from December, 27th, 1991 № 2124-1, and, certainly, Civil code positions (especially positions of Chapter 71 devoted to regulation of the adjacent rights, namely «the rights of the organisations of a radio and cable announcement»).

It is important to consider also, that sources of legal regulation of the relations arising concerning the message in an aether (or on a cable) telecasts (broadcasts), are the international legal acts. So, the Russian Federation participates in the Convention on non-distribution of the signals bearing program transferred through companions from May, 24th, 1974 (since January, 20th, 1989), in the International convention on protection of the rights of executors, manufacturers of soundtracks and the broadcasting organisations, concluded in Rome on October, 26th, 1961 (further - the Roman convention) which Russia has joined since May, 26th, 2003 Great value for regulation of the given sphere of relations have also Contract VOIS on executions and soundtracks from December, 20th, 1996, the Convention on protection of interests of manufacturers of soundtracks from October, 29th 1971г. The given standard legal acts are on a joint of legal relations between the telecommunication company on the one hand, and

The speaker - on the other hand. [200 [201] two statuses of subjects of activity - the telecommunication companies and speakers designate various volume of possibilities, the rights and duties and are not interchangeable.

Even in the event that one subject of enterprise activity acts

At once on two qualities, for example, renders telecommunication services (on

201

The basis of the licence for rendering of a telecommunication service for a cable announcement) and simultaneously is the speaker of certain television channel (on the basis of the corresponding licence for an announcement), to each concrete kind of its activity corresponding regulation is applied.

One of the parties of the contract on rendering of telecommunication services for cable or radio tele-radio broadcasting always is the telecommunication company. As the customer of such telecommunication services can act or the client (physical or the legal body), or the speaker. Accordingly, the speaker also gets the status of the client and receives telecommunication services that finally the signal extended by the speaker, became accessible to the direct consumer of such services. If it is a question not of rendering of telecommunication services, and, for example, about according a right of viewing/listening of a certain teleradio program, in this case as the contract parties act the client (the customer of service) on the one hand, and the speaker, with another. [202] distinction on subject structure of the specified types (kinds) of contracts, thus, has the important legal effect taking into account an establishment of the rights, duties and a responsibility of the parties.

Thus, dogovory about rendering of telecommunication services for cable or an on-air broadcasting it is possible to subdivide conditionally on directly "client", concluded between the telecommunication company and the client (further «the client contract»), and the contract concluded between the telecommunication company and the speaker (further the "client" contract with the speaker). By the legal nature data dogovory are contracts vozmezdnogo rendering of services (in this case services in reception, processing and transfer of telecommunication signals which to accept and receive it is possible only by means of the special equipment).

According to item 15 of Rules of rendering of a telecommunication service for tele-radio broadcasting by a subject of the "client" contract is: 1) access granting to a communication network of tele-radio broadcasting of the telecommunication company; 2) granting in constant using of a user's line; 3) delivery of a signal to the user (terminal) equipment of the client, thus only the given third part of the "client" contract can not be a subject of such contract as duties of the telecommunication company on delivery of a signal to the user (terminal) equipment of the subscriber can be reflected in a subject of the "client" contract with the speaker

203

(A design «in favour of the third party»).

Subject of the "client" contract with the speaker (item 38 of Rules about rendering of a telecommunication service for tele-radio broadcasting) is: 1) maintenance of granting to the speaker of access to a communication network of tele-radio broadcasting of the telecommunication company and (or) 2) reception and a signal transmission of a teleradio program to the user (terminal) equipment, 3) under the arrangement between the speaker and the telecommunication company can be provided a design «in favour of the third party» about what it was spoken [203] above (when the speaker still orders delivery of a signal to the user (terminal) equipment with payment of this service at the expense of means of the speaker).

Proceeding from stated the "client" contract always assumes granting of a user's line in constant "using" to the client [204]. Meanwhile, taking into account technologies of rendering of telecommunication services for tele-radio broadcasting (on a cable or on air) to generate a user's line and to give it in constant using in aether (the legislation does not contain definition "aether", but, proceeding from the general sense it means "by air") is physically impossible. According to section of XVIII licence requirements approved by the Governmental order of the Russian Federation from February, 18th, 2005 № 87, to the telecommunication company at rendering of a telecommunication service for an on-air broadcasting two demands 1) reception of signals of the program (programs) of a television announcement and (or) broadcastings from speakers are made; 2) translation of signals of the program (programs) on air. Thus, for comparison, the same licence requirements to the telecommunication company which are carrying out activity in the field of rendering of a telecommunication service for cable tele-radio broadcasting, besides other, include maintenance of granting to the client of a user's line in constant using. Accordingly, the legislator at formation of licence requirements recognised that at rendering of a telecommunication service for an on-air broadcasting to generate a user's line it is not obviously possible.

Taking into account stated, in point 15 Corrected rendering of a telecommunication service for tele-radio broadcasting it is required to bring specifications that formation of a user's line and its granting in constant using is carried out at rendering of telecommunication services for cable tele-radio broadcasting, and at use of the radio environment the user's line is not formed.

Moreover, considering the considered contractual designs on providing of access to services of radio tele-radio broadcasting about which it was in detail spoken earlier, the contract on granting of the rights to viewing/listening of teleradio programs us is offered to be concluded between the speaker and the client (thus the telecommunication company in such scheme can act as «the helper of the debtor» (the speaker) and to render to the speaker telecommunication services).

Neither the Law «About communication», nor Rules of rendering of a telecommunication service for cable (radio) tele-radio broadcasting do not contain definition of concept of telecommunication service for tele-radio broadcasting. However taking into account a parity of concepts «signal distribution» (it is carried out by the speaker) and «signal translation» (is carried out by the telecommunication company) us is offered to enter such definition into the legislation in communication branches. So, for tele-radio broadcasting for clients it is necessary to understand telecommunication services in reception, processing and signalling of teleradio programs as telecommunication services for their reception by means of the user equipment of clients.

Concerning telecommunication services for tele-radio broadcasting for speakers under those we offer to understand services in reception, processing and a signal transmission, extended by this speaker, with a view of translation of such signal on a cable or on air. Services in reception, processing and a signal transmission in such contract can include also services in association both either) to separation and (or) otherwise carried out "ukomplektatsii" signals a body/radio of channels; services in signal (signals) allocation; services in a compression (compression) and dekompressii signals; services in enciphering and decoding of signals.

Despite lacking in the legislation in branches of communication of such list possible to rendering to the speaker of services from the telecommunication company, the given conditions can be included in corresponding "client" dogovory with speakers. The given services are not inherently independent services, and represent additional parametres, characteristics of the basic subject of the contract.

The described models of relations between the telecommunication companies, speakers and clients allow to offer following definition of the "client" contract and the "client" contract with the speaker. So, (the contract on rendering of telecommunication services for cable or radio tele-radio broadcasting) it is necessary to understand as the "client" contract the agreement between the telecommunication company and the client (physical or the legal body) in which force the telecommunication company undertakes to render to the client telecommunication services for tele-radio broadcasting (i.e. services in reception, processing and a signal transmission of the teleradio programs extended by speakers), and the client undertakes to pay received services. With the speaker it is necessary to understand such agreement as the "client" contract between the telecommunication company and the speaker, in which force the telecommunication company undertakes to render to the speaker telecommunication services (i.e. Services in reception, processing, transfer of the telecommunication signal extended by this speaker, for translation of such signal on a cable or on air), and the speaker undertakes to pay these services.

Rules of rendering of telecommunication services for tele-radio broadcasting (further it is equivalent "Rules") contain the exhaustive list of essential conditions which should contain in the contract on rendering of such telecommunication service:

1) the list of a rendered telecommunication service;

2) system of fee of communication;

3) an order, terms and the form of fee of communication (item 21 of Rules).

As well as in the cases described earlier, the list of essential conditions for the "client" contracts established in Rules of rendering of corresponding telecommunication services, is superfluous.

Not up to the end in the legal literature the question on is worked, whether the concrete list of teleradio channels for the translation, the given telecommunication services included in a package concerns essential conditions of the "client" contract. The current legislation, judiciary practice do not give the unequivocal answer to the given question. So, taking into account all circumstances has put one courts come to conclusion that the quantity of television channels is an essential condition of the "client" contract and unilaterally such quantity to change it is impossible, even if distribution of television channel (radio channel) stops the speaker and its translation is impossible. Other courts recognise that quantity of teleradio channels in "package" is not the essential treaty provision, and taking into account mutual relations between the speaker and the telecommunication company, the quantity of teleradio channels does not concern the essential. [205 [206]

By consideration of the given question and definition of an essence of legal relations between the telecommunication company and the client it is necessary to return to a question on technology of process of formation of a teleradio channel and possibility of its viewing (listening) by the client. As already it was considered earlier, distribution of signals is carried out by speakers. However in legal model of contractual communications applied under the current legislation the contract on finishing of a signal of the speaker to the terminal

(User) equipment of clients consists between

Telecommunication the companies and the client (the speaker does not participate in such contract).

According to item 3 of item 308 of the Civil code of the Russian Federation the obligation does not create duties for the persons who are not participating in it as the parties (for the third parties). Accordingly, if the speaker has changed frequency of distribution of television channel (radio channel), has temporarily suspended its distribution or in general has refused that distribution (as, for example, recently has developed in the market of the Russian services with refusal of distribution in territory of Russia of channel CNN) the telecommunication company in the absence of contractual relations with the speaker has no legal grounds for duty putting on on the speaker to continue to extend a teleradio channel on former conditions so that the telecommunication company has properly executed the contractual obligations with the client. Thus the rights of clients remain not protected. So, at the termination of an announcement of a teleradio channel by the speaker, the telecommunication company in questions of attraction that to responsibility has the right to operate with positions of item 416 of the Civil code of the Russian Federation. According to the specified norm of the obligation stop impossibility of execution if it is caused come after occurrence of obligations by circumstance for which any of the parties does not answer.

Thus, the existing system of contractual communications between speakers and the telecommunication companies, between the telecommunication company and the client, does not protect the rights of clients, and also is reduced making responsible the telecommunication companies for actions of the third parties (speakers).

So that speakers as distributors of signals of teleradio programs, took up obligations to clients for execution of the given duties (maintenance of distribution of signals

Teleradio channels), other legal model of such contractual communications was already offered.

As well as by consideration of features of contracts on rendering of telematic services and services in data transmission, absence in the list of essential conditions of the "client" contract and the "client" contract with the speaker of a condition about the geographical address of reception of such services is represented unreasonable. Such requirement is obviously necessary at rendering of services of cable tele-radio broadcasting as for the access organisation to telecommunication networks of the telecommunication companies the certain infrastructure (for example, formation of a user's line) is required. Thus in this case, the same as and in a case with rendering of services of telecommunication, not up to the end questions on necessity of reception of the consent to making contract of all proprietors of a premise if the access organisation to a telecommunication communication network is carried out on will of one of proprietors are investigated.

For an establishment of technical possibility of reception of a signal of the speaker at the conclusion of the "client" contract with the speaker the coordination between the telecommunication company and the speaker the location of the equipment of each of the parties of the contract for reception of such signal is represented also necessary.

Thus, an essential condition of the "client" contract on rendering of telecommunication services for tele-radio broadcasting, the contract subject should be, and at rendering of services of cable tele-radio broadcasting also the address of reception of such services. And in offered legal model of the "client" contract when the telecommunication companies on behalf of speakers will conclude dogovory with the clients, the list of concrete teleradio channels should become an essential condition of such contract also.

Essential conditions of the "client" contract with the speaker the subject of the contract and the address of the location of the equipment of each should be of

The parties of the contract for reception of a signal of the speaker.

Other conditions named essential in Rules, for a recognition of such contracts prisoners, are, in our opinion, superfluous.

As to the form of the "client" contract (and the "client" contract with the speaker) requirements to that are established in Rules (item 12) according to which the "client" contract and the "client" contract with the speaker should be concluded in writing. Considering, that Rules do not show additional requirements to the contract form (as, for example, Rules of rendering of a telematic telecommunication service), at making contract about rendering of telecommunication services for a cable (radio) announcement are applied general provisions of the Civil code of the Russian Federation on the written form of the contract.

As it is necessary to consider questions on a parity of a radio and satellite announcement. Operating standard legal acts do not contain the special provisions devoted to a satellite announcement in branch of communication, obviously, carrying such kind of an announcement to the radio. The given position of the legislator is possible is proved, as in the conditions of level of technical progress the telecommunication companies in the field of rendering of such services

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Position the services as "hybrid".

To regulation of questions on a responsibility of the parties under the "client" contract and the "client" contract with the speaker and to the termination of such contractual relations, come under to application of position of the Civil code of the Russian Federation, the Law «About communication», the Law «About protection of the rights the consumer» from February, 7th, 1992 № 2300-1 (regarding "client" contracts), «Rules about rendering of a telecommunication service for tele-radio broadcasting». It is necessary to notice, that Rules after Law positions «About communication» establish [207] pretenzionnyj a grievance procedure of clients. Besides, Rules in detail enough regulate questions of a responsibility of the parties, and also establish the size of penalties for default (inadequate) execution of obligations under the "client" contract and the "client" contract with the speaker.

Meanwhile, Rules at regulation of relations on attraction of the telecommunication companies to a liability of infringement of the rights of clients in connection with change of frequency of translation of a teleradio channel and (or) in connection with the termination of translation of such channel do not consider that fact, that activity of the telecommunication companies consists in finishing to the client a signal of a teleradio channel which extends (changes, stops) the speaker. From developing judiciary practice also follows, that by consideration of a question on attraction of the telecommunication company to responsibility for refusal to aid (poor-quality) rendering of a telecommunication service for tele-radio broadcasting questions of appropriate execution of the obligations by speakers on distribution of a signal of a teleradio channel are not investigated. Made decisions are based on positions of Rules according to which (poor-quality) rendering of a telecommunication service for tele-radio broadcasting the telecommunication companies bear responsibility for refusal to aid, and can be relieved from responsibility only owing to force majeure circumstances or if it is caused by actus reus of other party (item 58, item 69 of Rules), that in case of change of frequency of translation of a teleradio channel and (or) the terminations of an announcement of a teleradio channel at will of the speaker is not applicable.

Taking into account stated, sees necessary has undressed Rules about rendering of a telecommunication service for the tele-radio broadcasting which rules of law in detail regulate questions of a responsibility of the parties (item 58-69 of Rules), to add with point, in conformity which the telecommunication companies would bear responsibility for an invariance of frequency of translation and an invariance of quantity of broadcast channels only under condition of that frequency of the channel and channel distribution not izmenjaetsja/is carried out by the speaker. Otherwise the telecommunication companies should be relieved from responsibility.

Thus, the carried out analysis of the current legislation in the field of rendering of a telecommunication service for tele-radio broadcasting, allows to come to following conclusions: both the "client" contract, and the "client" contract with the speaker about rendering of a telecommunication service for tele-radio broadcasting concerns contracts vozmezdnogo rendering of services and has similarity to above considered "client" contracts as activity of the telecommunication companies in such contracts is always reduced to "transportation", to signal "transfer", but in this case such signal extends the speaker. Taking into account the given features all civil-law regulation of the given relations should be built. And offered some specifications in the legislation in the field of rendering of a telecommunication service for tele-radio broadcasting even more will promote performance of "the Federal target program« tele-radio broadcasting Development in the Russian Federation on 2009 - 2018 », the Russian Federation approved by the Governmental order from December, 3rd, 2009 № 985 and to transition to digital tele-radio broadcasting to territories of all country.

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A source: Kuznetsova Oksana Aleksandrovna. CIVIL-LAW REGULATION of CONTRACTUAL RELATIONS In SPHERE of TELECOMMUNICATION SERVICES. Moscow - 2001. 2001

More on topic § 3. Dogovory concerning rendering of telecommunication services for tele-radio broadcasting.:

  1. §1. "Client" dogovory about rendering of services of telecommunication: local, vnutrizonovoj, long-distance and international telecommunication, mobile radio telephone communication.
  2. CHAPTER 3. "CLIENT" DOGOVORY ABOUT RENDERING OF TELECOMMUNICATION SERVICES.
  3. § 4. The uniform contract on rendering of telecommunication services.
  4. § 2. Features of the civil matters developing concerning rendering of telecommunication services.
  5. Chapter 2. OSNOVYE KINDS of the CONTRACTS NECESSARY FOR MAINTENANCE of RENDERING of TELECOMMUNICATION SERVICES.
  6. §2. Features of the "client" contracts concluded for rendering of a telematic telecommunication service and a telecommunication service on data transmission.
  7. §3. Ordering of the contracts concluded in sphere of telecommunication services.
  8. §1. The review of the current legislation regulating the relations in sphere of telecommunication services.
  9. § 2. Obligations on the Internet from contracts of rendering of services
  10. § 3. Obligations on the Internet on gratuitous rendering of services
  11. § 3. Swindle in sphere of rendering of medical services
  12. 2.4. Responsibility under the contract on rendering of paid educational services
  13. § 2. Rendering of the medical services which are not meeting the requirements of safety
  14. §2. Concept and kinds of the contracts regulating rendering of services of lawyers
  15. 1.3.1 Expenses for rendering of educational services
  16. Chapter 1. TELECOMMUNICATION SERVICES AS SPECIAL OBJECT of civil-law REGULATION.
  17. 2.2. Making contract on rendering of paid educational services
  18. 2.3. The contract maintenance on rendering of paid educational services